Debtors

News & Analysis as of

Accrual and Payment of Interest on Creditors’ Claims in Insolvency: The Plenary Session of the Russian Supreme Commercial Court...

This issue considers the most important provisions of the resolution adopted at the Plenary Session of the Supreme Commercial Court of the Russian Federation (the “SCC”) No. 88, dated 6 December 2013, “On Accrual and Payment...more

When it Comes to Answering Debt Collection Lawsuits – Keep it Simple

The other day a client hired me to help them in fighting debt buyer Midland Funding. I drafted the Answer – the document that is submitted in response to the Complaint filed by Midland. I was reviewing it with the client...more

District Court Strikes Overly Broad TCPA Class Definition: the Claim of a “Wrong Party” Called is Atypical of the Claims of...

In Buonomo v. Optimum Outcomes, Inc., No. 13-cv-5274 (N.D. Ill. March 17, 2014), the United States District Court for the Northern District of Illinois granted a partial motion to strike class action allegations alleging...more

Affairs of State: When States Are Creditors: Why § 525 Matters and Should Be Expanded

One of the pillars of a debtor’s fresh start is the anti-discrimination provisions of § 525 of the Bankruptcy Code, which codifies the U.S. Supreme Court’s decision in Perez v. Campbell. The Court held that two state statutes...more

Debtors Did Not Have To Bring Stock Certificates Back Into Florida

A Florida court ordered defendants to turn over stock certificates located outside of Florida evincing their ownership interest in several foreign entities to satisfy a judgment. On appeal, the appellate court ordered that...more

Bankruptcy: Preference Defendants Don’t Feel “Preferred”

This year, many unsuspecting businesses will be hauled into court by a trustee seeking return of a “preferential” payment made by a party now in bankruptcy. To those uninitiated, a bankruptcy trustee’s power to “avoid” or...more

California Bankruptcy Court Holds Junior Lienholder Liable for Payments Debtors Made to Senior Lienholder as Preferential...

Section 547 of the Bankruptcy Code allows a bankruptcy trustee to recover transfers from creditors that are labeled “preferences.” To avoid a transfer as a preference, the trustee must generally demonstrate that the transfer:...more

Not All Property Acquired Post-Petition is Safe from Creditors

Although property obtained by a debtor after filing for bankruptcy is usually safe from creditors, a recent case from the Ninth Circuit Bankruptcy Appellate Panel allowed a Chapter 7 Trustee to sell real property obtained by...more

A creditor is suing me! What should I do?

We'll take a look at what might happen if you do nothing when a creditor sues you, if you "answer" the lawsuit in a timely fashion, and if you file bankruptcy....more

February 2014: Bankruptcy & Restructuring Update

Second Circuit Holds that Section 109 Eligibility Requirements Apply to Foreign Entities in Chapter 15 Bankruptcy Cases. Recently, the United States Court of Appeals for the Second Circuit held that the eligibility...more

Closing the Chapter 7 Loophole for High Income Debtors

Heralded by debtor’s attorneys as “a wonderful loophole”1 in the Bankruptcy Code, a debtor who has primarily business, rather than consumer, debts can qualify for a speedy Chapter 7 discharge despite a high earning capacity...more

Creditors Beware: Do the Proof of Claim Right or You Are Out

Recent developments in the bankruptcy arena have placed a greater burden on claimants. Creditors are now required to make additional disclosures in their proof of claim forms, and courts are under no obligation to recognize...more

Fourth Circuit Holds FDCPA Allows For Oral Disputes Of Debt

On January 31, the U.S. Court of Appeals for the Fourth Circuit held that the FDCPA does not impose a requirement that debt disputes be presented in writing and permits debtors to orally dispute the validity of a debt. Clark...more

ERISA: 6th Circuit — Failing to Disclose Disability Claim in Bankruptcy NOT Fatal to Disability Lawsuit

What happens when a long term disability claimant declares bankruptcy, and fails to list the long term disability claim in the bankruptcy estate? Is he judicially estopped from bringing the lawsuit alleging wrongful...more

Lehman Court Finds Safe Harbors Protect Damage Calculation Provisions In Swap

Judge James M. Peck issued an important opinion in the Lehman Brothers bankruptcy late last month. The opinion protects a non-debtor counterparty's right to rely on a contractually agreed methodology for damages calculations...more

It's Always Something: The Repeated Assaults on Licensee Rights in Bankruptcy

No one has ever asserted that the bankruptcy arena is for the faint hearted. on the road to development of a plan of reorganization (or more commonly these days, a sale of all of the debtor’s assets), there can be bruising...more

Public Works Projects and Municipal Bankruptcies

The good news is that public works construction projects for municipalities are projected to remain a major sector of construction activity for the foreseeable future. The not-so-good news is that municipal bankruptcy filings...more

Express Trusts: Recovering Goods or Proceeds from a Bankrupt Client

When a client goes bankrupt, an unpaid supplier is often left with few remedies. Generally speaking, the unpaid supplier’s recovery is limited to their proportional share of what is left of the proceeds from the bankrupt’s...more

Obtaining a Deficiency Judgment in Georgia – Overview of Procedures

A previous post discussed the non-judicial foreclosure procedure used in Georgia. This post discusses the steps that a Florida bank doing business in Georgia, or with clients owning property in Georgia, must take to obtain a...more

CFPB Extends Time To Respond To Debt Collection Proposal

On January 13, the CFPB issued a notice extending the comment period for its advance notice of proposed rulemaking related to debt collection practices. The notice states that...more

Nevada Supreme Court Limits Homestead Exemption in In re Nilsson

In In re Nilsson, 129 Nev. Adv. 101 (December 26, 2013), the United States Bankruptcy Court for the District of Nevada certified the following question to the Nevada Supreme Court: Can a debtor properly claim a...more

Nevada Supreme Court Limits Ability to Execute on Funds Contained in Joint Accounts in Brooksby v. Nevada State Bank

In Brooksby v. Nevada State Bank, 129 Nev. Adv. Op. 82 (Nov. 7, 2013), Nevada State Bank obtained a deficiency judgment against the guarantor of a commercial loan and then garnished funds contained in bank accounts jointly...more

Accidents Don’t Cut It – Ensuring You Don’t “Unintentionally” Violate the Automatic Stay

A debtor files for bankruptcy protection, and his or her creditors are sent notice of the filing. Despite having received the notice, due to a breakdown in internal procedures one of the creditors, a bank, accidentally takes...more

Community Banking Excellence - Fourth Quarter 2013

In This Issue: - Interview with a Community Banking Professional - Holiday Wishes - Accidents Don't Cut It - Ensuring You Don't "Unintentionally" Violate the Automatic Stay - Dodd-Frank Essentials: Executive...more

Consumer Attorneys Target Collection Agencies And Attorneys Over Garnishment Costs

Consumer attorneys in Michigan have recently filed a rash of class action lawsuits against collection agencies, their attorneys, and even creditors under the Fair Debt Collection Practices Act ("FDCPA") and Michigan law over...more

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